Original Notice.

Preproposal statement of inquiry was filed as WSR 98-05-051 and 98-05-052.

Title of Rule: WAC 388-513-1340 Institutional--Exempt income, 388-513-1345 Institutional--Disregarded income, and 388-515-1505 Community options program entry system (COPES).

Purpose: WAC 388-513-1340 and 388-513-1345, federal law exempts funds received under the Susan B. Walker v. Bayer Corporation et al. 96-C-5024 (N.D.III. May 8, 1997) class settlement as income when determining institutional Medicaid eligibility and post eligibility. Certain veterans' benefits (currently exempt) will be considered as income when determining Medicaid post eligibility. WAC 388-515-1505, the rule will be amended to allow: (1) COPES-eligible individuals living in residential settings to retain a personal maintenance allowance of $58.84, and (2) certain veterans will be allowed to retain a personal maintenance allowance of $90.

Statutory Authority for Adoption: RCW 74.08.090, 74.04.050, 74.04.057, 42 C.F.R. 435.601, 42 C.F.R. 435.725-726, and Section 4715 and 4735 of the Federal Balanced Budget Act of 1997 (P.L. 105-33)(H.R. 2015).

Statute Being Implemented: Section 4715 and 4735 of the Federal Balanced Budget Act of 1997 (P.L. 105-33)(H.R. 2015), and RCW 74.08.090.

Summary: See Purpose above.

Reasons Supporting Proposal: Most of the changes proposed are beneficial to clients receiving institutional medical care. The lone exception - certain veterans' benefits which have been exempt will now be considered as income when determining Medicaid post eligibility - is a change mandated by federal law.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Stephen Kozak, Medical Assistance Administration, 617 8th Avenue S.E., Olympia, WA 98504-5530, (360) 586-1034.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is necessary because of federal law, Citation: Section 4715 and 4735 of the Federal Balanced Budget Act of 1997 (P.O. 105.33)(H.R. 2015).

Explanation of Rule, its Purpose, and Anticipated Effects: To incorporate the following federal changes: Funds received under the Susan B. Walker v. Bayer Corporation et al. 96-C-5024 (N.D.III. May 8, 1997) class settlement are considered exempt income when determining institutional Medicaid eligibility and post eligibility; certain veterans' benefits that were exempt will now be considered as income when determining institutional Medicaid post eligibility; and certain veterans will be allowed to retain a personal maintenance allowance of $90. The department is also increasing the amount a person who is COPES-eligible is allowed to retain for their personal maintenance.

Proposal Changes the Following Existing Rules: See Explanation of Rule above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule change does not impact small businesses.

RCW 34.05.328 applies to this rule adoption. These rules do fit the definition of a significant legislative rule but DSHS is exempt from preparing further analysis under RCW 34.05.328 (5)(b)(vii).

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on October 26, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by October 12, 1999, phone (360) 664-6094, TTY (360) 664-6178, e-mail wallpg@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by October 26, 1999.

Date of Intended Adoption: No sooner than October 27, 1999.

September 10, 1999

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

((The department shall consider a client's income exemptions as unavailable income when determining initial institutional eligibility or post-eligibility.  The department shall exempt sequentially from income:

(1) Any public agency's refund of taxes paid on real property or on food;

(2) Supplemental security income (SSI) and state public assistance based on financial need;

(3) Any portion of a grant, scholarship, or fellowship used to pay tuition, fees, or other necessary educational expenses at any educational institution;

(4) Child support received by a parent from an absent parent, for a minor child who is not institutionalized;

(5) Tax exempt payments received by Alaska natives under the Alaska Native Claims Act;

(6) Tax rebates or special payments excluded by other statutes;

(7) Compensation provided to volunteers in ACTION programs established by P.L. 93-113, The Domestic Volunteer Service Act of 1973;

(8) Veteran's Administration benefits designated for:

(a) The veteran's dependent;

(b) Unusual medical expense; and

(c) Aid and attendance and housebound allowance.

(9) Income received by an ineligible or nonapplying spouse from a governmental agency for services provided to an eligible client, for example, chore services;

(10) Funds received from the Agent Orange Settlement Fund or any other funds established to settle Agent Orange liability claims under P.L. 101-201;

(11) Payments to certain survivors of the Holocaust under the Federal Republic of Germany's Law for Compensation of National Socialist Persecution or German Restitution Act.  Interest earned on conserved payment is not exempt;

(12) Payments under the Radiation Exposure Compensation Act received by the injured person, the surviving spouse, children, grandchildren, or grandparents;

(13) Payments under sections 500 through 506 of the Austrian General Social Insurance Act.  The department shall consider the earned interest from such payments as countable income;

(14) Certain cash payments a client receives from a governmental or nongovernmental medical or social service agency to pay for medical or social services;

(15) Restitution payment, and interest earned on such payment to a civilian of Japanese or Aleut ancestry under P.L. 100-383;

(16) The amount of expenses directly related to a client's impairment that allows the permanently and totally disabled client to continue to work;

(17) The amount of blindness-related work expenses of a blind client;

(18) Interest earned on excluded burial funds and any appreciation in the value of an exempt burial arrangement which are left to accumulate and become part of the separately identified burial funds set aside on or after November 1, 1982;

(19) Earned income tax credit (EITC); and

(20) Victim's compensation)) This section describes income the department excludes when determining a client's eligibility and participation in the cost of care for LTC services with the exceptions described in subsections (29) and (32).

(1) Crime victim's compensation;

(2) Earned income tax credit (EITC);

(3) Native American benefits excluded by federal statute (refer to WAC 388-450-0040);

(4) Tax rebates or special payments excluded by other statutes;

(5) Any public agency's refund of taxes paid on real property and/or on food;

(6) Supplemental Security Income (SSI) and certain state public assistance based on financial need;

(7) The amount a representative payee charges to provide services when the services are a requirement for the client to receive the income;

(8) The amount of expenses necessary for a client to receive compensation, e.g., legal fees necessary to obtain settlement funds;

(9) Any portion of a grant, scholarship, or fellowship used to pay tuition, fees, and/or other necessary educational expenses at any educational institution;

(10) Child support payments received from an absent parent for a minor child who is not institutionalized;

(11) The amount of expenses related to impairments of a permanently and totally disabled client that allow the client to work;

(12) Self-employment income allowed as a deduction by the Internal Revenue Service (IRS);

(13) Payments to prevent fuel cut-offs and to promote energy efficiency that are excluded by federal statute;

(14) Assistance (other than wages or salary) received under the Older Americans Act;

(15) Assistance (other than wages or salary) received under the foster grandparent program;

(16) Certain cash payments a client receives from a governmental or nongovernmental medical or social service agency to pay for medical or social services;

(17) Interest earned on excluded burial funds and any appreciation in the value of an excluded burial arrangement that are left to accumulate and become part of the separately identified burial funds set aside;

(18) Tax exempt payments received by Alaska natives under the Alaska Native Settlement Act established by P.L. 100-241;

(19) Compensation provided to volunteers in ACTION programs under the Domestic Volunteer Service Act of 1973 established by P.L. 93-113;

(20) Payments made from the Agent Orange Settlement Fund or any other funds to settle Agent Orange liability claims established by P.L. 101-201;

(21) Payments made under section six of the Radiation Exposure Compensation Act established by P.L. 101-426;

(22) Restitution payment, and interest earned on such payment to a civilian of Japanese or Aleut ancestry established by P.L. 100-383;

(23) Payments made under sections 500 through 506 of the Austrian General Social Insurance Act;

(24) Payments made from Susan Walker v. Bayer Corporation , et, al., 95-C-5024 (N.D. Ill.) (May 8, 1997) settlement funds;

(25) Payments made from the Ricky Ray Hemophilia Relief Fund Act of 1998 established by P.L. 105-369;

(26) Payments made under the Disaster Relief and Emergency Assistance Act established by P.L. 100-387;

(27) Payments made under the Netherlands' Act on Benefits for Victims of Persecution (WUV);

(28) Payments made to certain survivors of the Holocaust under the Federal Republic of Germany's Law for Compensation of National Socialist Persecution or German Restitution Act;

(29) Interest earned from payments described in subsections (23) through (28) is considered available and counted as nonexcluded income;

(30) Income received by an ineligible or nonapplying spouse from a governmental agency for services provided to an eligible client, e.g., chore services;

(31) Department of Veterans Affairs benefits designated for:

(a) The veteran's dependent;

(b) Unusual medical expenses, aid and attendance allowance, and housebound allowance, with the exception described in subsection (32);

(32) Benefits described in subsection (31)(b) for a client who resides in a state veterans' home and has no dependents are excluded when determining eligibility, but are considered available when determining participation in the cost of care.

[Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter #94-33.  95-02-028 (Order 3819), § 388-513-1340, filed 12/28/94, effective 1/28/95.  Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), § 388-513-1340, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-95-340 (part).]

((The department shall consider disregarded income as unavailable income when determining initial eligibility but shall consider the income available during post-eligibility.  See WAC 388-513-1380 for post-eligibility treatment of income.  The department shall disregard sequentially from income:)) This section describes income the department disregards when determining a client's eligibility for institutional or waivered services under the MN program. The department considers disregarded income available when determining a client's participation in the cost of care.

(1) The department disregards the following income amounts in the following order:

(a) Income that is not reasonably anticipated, or is received infrequently or irregularly, when such income does not exceed:

(((a))) (i) Twenty dollars per month if unearned; or

(((b))) (ii) Ten dollars per month if earned.

(((2))) (b) The first twenty dollars per month of earned or unearned income((. The department may not exclude)) , unless the income paid to a client ((on the basis of)) is:

(i) Based on need; and ((is))

(ii) Totally or partially funded by the federal government or ((by)) a private agency.

(((3))) (2) For ((an SSI-related person)) a client who is related to the Supplemental Security Income (SSI) program as described in WAC 388-503-0510(1), the first sixty-five dollars per month of earned income not ((exempted)) excluded under WAC 388-513-1340, plus one-half of the remainder.

(((4))) (3) For ((an AFDC)) a TANF/SFA-related ((person, the first ninety dollars)) client, fifty percent of gross earned income.

(4) Department of Veterans Affairs benefits if:

(a) Those benefits are designated for:

(i) Unusual medical expenses;

(ii) Aid and attendance allowance; or

(iii) Housebound allowance; and

(b) The client:

(i) Resides in a state veterans' home; and

(ii) Has no dependents.

(5) ((Money voluntarily withheld from SSA Title II benefits by)) Income the Social Security Administration (SSA) withholds from SSA Title II benefits for the recovery of an SSI overpayment((; and

(6) A fee charged by a guardian as reimbursement for provided services, when such guardianship services are a requirement for the client to receive payment of the income)).

[Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter #94-33.  95-02-028 (Order 3819), § 388-513-1345, filed 12/28/94, effective 1/28/95.  Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), § 388-513-1345, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-95-340 (part).]

(((1) The department shall determine a person eligible for COPES when a person is eighteen years of age or over and:

(a) Meets the categorically needy eligibility requirements for an SSI-related institutionalized person.  For the purposes of COPES, a person is considered institutionalized as of the date all eligibility criteria, except institutionalized status, is met;

(b) Requires the level of care provided in a nursing facility;

(c) Has a department-approved plan of care that meets the eligibility requirements for COPES personal care as described under WAC 388-15-610; and

(d) Is able and chooses to reside at home with community support services, in a:

(i) Congregate care facility (CCF);

(ii) Licensed adult family home (AFH); or

(iii) Licensed boarding home (LBH).

(e) Is institutionalized, or the department determines is likely to be institutionalized within the next thirty days in the absence of waivered services under WAC 388-15-615.

(2) The department shall exempt SSI income from participation in the cost of COPES care.

(3) The department shall allocate available income of the SSI-related COPES client as described under WAC 388-513-1380 (1), (2), (3), (4), (d), (e), (f), (g), and (h), (5), and (6).  The client shall retain for maintenance needs an amount equal to:

(a) For a single person or a married person not living with a community spouse, one hundred percent of the one-person Federal Poverty Level (FPL);

(b) For a married couple who are both receiving COPES, one hundred percent of the one-person FPL for each person; or

(c) For a married person living with a community spouse, the one-person MNIL.

(4) The SSI-related client residing in a CCF, AFH, or LBH shall:

(a) Retain from a maintenance needs amount, a personal needs allowance of fifty dollars; and

(b) Pay the remaining maintenance needs amount to the facility for the cost of board and room.

(5) The department shall include the remaining income after allocations as the participation amount for COPES services as described under WAC 388-15-620)) This section describes the financial eligibility requirements for waivered services under the COPES program and the rules used to determine a client's participation in the cost of care.

(1) The department establishes eligibility for COPES for a client who:

(a) Is eighteen years of age or older;

(b) Meets the disability criteria of the Supplemental Security Income (SSI) program as described in WAC 388-503-0501(1);

(c) Requires the level of care provided in a nursing facility;

(d) Is in a medical facility, or will likely be placed in one within the next thirty days in the absence of waivered services described in WAC 388-15-620;

(e) Has attained institutional status as described in WAC 388-513-1320;

(f) Has been determined to be in need of waivered services and is approved for a plan of care as described in WAC 388-15-610;

(g) Is able to live at home with community support services and chooses to do so, or in a department-contracted:

(i) Adult residential care (ARC) facility;

(ii) Enhanced adult residential care (EARC) facility;

(iii) Licensed adult family home (AFH); or

(iv) Assisted living (AL) facility.

(h) Is not subject to a penalty period of ineligibility for the transfer of an asset as described in WAC 388-513-1365 and 388-513-1366; and

(i) Meets the income and resource requirements described in subsection (2).

(2) The department allows a client to have nonexcluded resources in excess of the standard described in WAC 388-513-1350(1) during the month of either an application or eligibility review if, when excess resources are added to nonexcluded income, the combined total does not exceed the special income level (SIL). Refer to WAC 388-513-1315 for rules used to determine nonexcluded income and resources. During other months, financial requirements include the following:

(a) Nonexcluded income must be at or below the SIL; and

(b) Nonexcluded resources must be at or below the resource standard.

(3) A client who is eligible for SSI does not participate SSI income in the cost of care. Such a client who is:

(a) Living at home, retains a maintenance needs amount as described in subsection (5); or

(b) Living in an ARC, EARC, AFH, or AL:

(i) Retains a personal needs allowance (PNA) of fifty-eight dollars and eighty-four cents; and

(ii) Pays remaining SSI income to the facility for the cost of board and room.

(4) A client who is eligible for the general assistance expedited Medicaid disability (GAX) program does not participate in the cost of care. Such a client who is:

(a) Living at home, retains a maintenance needs amount as described in subsection (5); or

(b) Living in an ARC, EARC, AFH, or AL:

(i) Retains a PNA of thirty-eight dollars and eighty-four cents; and

(ii) Pays remaining income and GAX grant to the facility for the cost of board and room.

(5) An SSI-related client living at home retains a maintenance needs amount equal to the following:

(a) Up to one hundred percent of the one-person Federal Poverty Level (FPL), if the client is:

(i) Single; or

(ii) Married, and is:

(A) Not living with the community spouse; or

(B) Whose spouse is receiving long-term care (LTC) services outside of the home.

(b) Up to one hundred percent of the one-person FPL for each client, if both are receiving COPES services;

(c) Up to the one-person medically needy income level (MNIL) for a married client who is living with a community spouse who is not receiving COPES.

(6) An SSI-related client living in an ARC, EARC, AFH, or AL receives a maintenance needs amount equal to the one-person MNIL and:

(a) Retains a PNA taken from the MNIL of fifty-eight dollars and eighty-four cents; and

(b) Pays the remainder of the MNIL to the facility for the cost of board and room.

(7) The client's income that remains:

(a) After allocations described in subsection (5) or (6) is allocated as described in WAC 388-513-1380(1), (2)(b) through (e), (3) and (4); and

(b) After allocations described in subsection (7)(a) is the client's participation in the cost of care.

[Statutory Authority: RCW 74.08.090.  96-14-058 (Order 100346), § 388-515-1505, filed 6/27/96, effective 7/28/96; 95-20-030 (Order 3899), § 388-515-1505, filed 9/27/95, effective 10/28/95; 94-10-065 (Order 3732), § 388-515-1505, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-83-200.]

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